The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

On July 7, 2007 the worker sustained a compensable injury to his low back in a work related accident. His claim for compensation was accepted by the Workers Compensation Board ("WCB") and benefits were paid. It was later determined that he had recovered from the effects of his injury and did not require ongoing work restrictions. This decision was confirmed by Review Office in a decision dated May 13, 2010. The worker disagreed and an appeal was filed with the Appeal Commission. A hearing was held via teleconference on September 30, 2010 to consider the matter.

Issue

Whether or not the worker's ongoing back and left leg complaints are related to the July 28, 2007 compensable injury; and

Whether or not the worker is entitled to wage loss benefits beyond April 15, 2009.

Decision

That the worker's ongoing back and left leg complaints are not related to the July 28, 2007 compensable injury; and

That the worker is not entitled to wage loss benefits beyond April 15, 2009.

Decision: Unanimous

Background

During the course of his employment as a pipefitter on July 7, 2007, the worker reported that he injured his low back on the left side from the following accident:

"I was working underneath the fermentation tank connecting the pipes underneath. I was outside of the pipe reaching in to put a stand underneath. The tripod was not correct so I had to move it to 30 degrees lifting the stand up, in my hand, and I twisted something in my back and I dropped the stand and went down on my hands and knees and then could not stand up".

Medical reports showed that the worker sought treatment from a hospital facility and was diagnosed with mechanical back pain. When seen for treatment by his family physician on August 3, 2007, the diagnosis rendered was a herniated lumbar disc. The claim for compensation was accepted and benefits were paid to the worker while he underwent physiotherapy treatment.

Ongoing reports showed that the worker underwent several laboratory investigations in relation to his back complaints:

• October 5, 2007 - a CT scan of the lumbar spine showed a broad based disc protrusion at the L4-5 level centrally and paracentrally on both sides and slightly more prominent along the left side. The remainder of the examination was unremarkable.

• February 19, 2008 - an MRI of the lumbar spine showed some disc dehydration at L3-4 level without significant bulge or focal herniation. The L4-5 disc showed a broad based asymmetric non-focal annular protrusion centrally and left paracentrally with mild compression of the thecal sac and exiting left L5 root. There were no signs of underlying canal stenosis.

On April 2, 2008, the worker was seen by an orthopaedic consultant at a hospital facility upon referral from his family physician. The specialist noted that one month after the July 2007 work accident, the worker noticed symptoms in his legs which consisted of numbness in the posterior thigh and occasionally into the calf. It was noticed more on the left side as opposed to the right side. The examination findings were 5/5 lower extremity strength, reflexes were within normal limits and straight leg raising was negative bilaterally. The worker was able to flex to touch his toes and extend at 30 degrees. There was normal sensation in both lower extremities. Following the assessment, it was suggested that the worker continue with his current physiotherapy regime of core strengthening and stabilization and to gradually reintroduce other activities that he liked to do.

The next report from the hospital facility is dated June 25, 2008. It was reported that the worker walked fine and could toe and heel walk. He had loss of lumbar lordosis. Straight leg raising was 90 degrees bilaterally. He had no nerve retention signs. He had a normal neurological exam of both lower limbs. The specialist noted that the worker's MRI scan from February showed degenerative disc disease at L3-4 and L4-5 and he had no nerve root compression. The specialist reported that the worker was exhibiting counter transference and chronic pain behavior. He said the clinical examination and his previous scan did not correlate with his symptoms.

On August 28, 2008, a WCB medical advisor indicated that the diagnosis appeared to be non-specific back pain, noting that the MRI demonstrated disc bulge at L4-5 and discogenic pain may be a factor. It was felt that the worker should be capable of at least modified duties based on the nature of his injury and the time that had passed since its occurrence (14 months). The medical advisor suggested that the WCB await further information from the family physician (a September 4, 2008 assessment) before making any suggestions as to a treatment plan for the worker, i.e. MRI, FCE, call in exam, reconditioning program, etc.

On September 4, 2008, the family physician reported that the worker continued to have ongoing back problems with pain radiating down into his legs. The examination showed reduced range of motion in the low lumbar region with some localized tenderness.

In January 2009, arrangements were made for the worker to undergo a six week daily work hardening program as the worker's employer was unable to accommodate him with duties that met his restrictions.

On February 26, 2009, the worker advised his WCB case manager that his strength had significantly improved as a result of the work hardening program but his pain levels had not changed. The worker advised that the WCB would be receiving a request for six additional weeks of work hardening.

In claim notes dated March 3, 2009, it was noted that the worker's work restrictions provided by WCB healthcare was to avoid heavy lifting and repetitive or sustained bending, flexed or stooped postures.

Subsequent file records showed that arrangements were being made for the worker to attend the WCB's offices for a call-in examination in March 2009 as well as a Functional Capacity Evaluation ("FCE") to determine whether a cause and effect relationship existed between the worker's compensable injury and current diagnosis and whether to authorize the further six weeks of work hardening.

On March 17, 2009, the worker spoke with a sector services manager to voice his concerns about flying to Manitoba for an examination due to his present back symptoms. The following was documented: "I explained the purpose of the examination and the benefits of meeting with him in person to gain a better understanding of his current situation given he has been off work for 2 years and reported symptoms appear to be worsening although functional abilities are improved as per the physio. Worker indicates his ability to travel in the past is not an indicator of what he can do now. He states he was laying down when he flew to China last summer and didn't have the symptoms he has now when he flew to the Dominican Republic early last year. Worker travels 40 minutes one way to physio, attends physio and travels 40 minutes back home. I indicated his functional abilities suggest he is mobile and has the ability to travel."

In a memo to file dated March 18, 2009, the case manager documented her telephone conversation with the physiotherapist regarding the extension request for work hardening. The physiotherapist noted that the worker gave his full participation in the recent work hardening program and confirmed that the worker increased his strength. The worker's pain levels, however, had not changed and it was felt that the worker was pain focused and might benefit from reducing his pain medication to get a better idea of his pain levels.

On March 18, 2009, the case manager spoke with the worker to notify him of his upcoming call-in exam and FCE. The worker again outlined his concerns about flying to Winnipeg and the effect it would have on his back symptoms.

On March 19, 2009, the case manager indicated that she spoke with a WCB medical advisor. The medical advisor told her that there was nothing on file to support that the worker could not participate in the flight to Winnipeg especially considering he reported an increased strength following his work hardening program recently and flew to China.

On March 24, 2009, the family physician wrote to the WCB stating: "[The worker] was in the office today and notes that when he sits for more than 30 minutes he has a significant increase in his pain. This would provide difficulties with him flying for longer than 30 minutes where he would be required to remain sitting".

In a medical certificate dated March 25, 2009, a different physician noted that the worker had an acute sinus infection and was not feeling well. He recommended that the worker not fly at this time.

In a note to file dated March 25, 2009, a WCB medical advisor indicated that a diagnosis of sinusitis would not typically be considered an absolute contraindication to flying. "If due to the sinus infection [the worker] has been advised not to fly at present, I can arrange to examine him at a subsequent date such as April 8 or 9."

On March 25, 2009, the case manager advised the worker that based on the recent medical information submitted by the walk-in clinic doctor, his call-in examination would be rescheduled to April. The worker indicated that he was undergoing an MRI on April 7, 2009 and was going to a pain management clinic on May 8, 2009.

In a letter dated March 27, 2009, the worker was advised that his WCB call in examination was rescheduled to April 15, 2009. It was further indicated to the worker that his failure to attend the call in examination and the April 7, 2009 MRI would result in the suspension of his benefits.

On April 6, 2009, a paralegal advocate, acting on the worker's behalf, provided the WCB with medical documentation to support the position that the worker was still being treated for his sinus infection and was unable to fly until the infection was cleared. The advocate noted that the worker had sleep apnea and required the nightly use of a CPAP machine.

On April 9, 2009, a WCB medical advisor reviewed the new medical information and outlined the opinion that the worker's chronic sinus condition or chronic back condition should not prohibit the worker from flying. He stated that airline/support staff could help the worker with transporting his CPAP machine which is typically not a large unit. With regard to the worker's sitting tolerance, he stated that other than at takeoff or landing, there was typically ample opportunity to leave one's seat to stand, change position, walk, etc.

On April 14, 2009, the worker advised the case manager that he was not attending the call in examination on April 15, 2009 as he preferred to wait for his sinus infection to clear up prior to flying. The file notes that he understood that his benefits would be suspended effective April 15, 2009.

An MRI of the lumbar spine dated April 7, 2009 showed "minimal degenerative disc changes at L3-4 and L4-5".

On April 17, 2009, a WCB medical advisor outlined the opinion that it was difficult to account for the worker's prolonged and severe reported symptoms in relation to the July 2007 compensable injury and that recovery would have been anticipated some time ago based on the nature of the mechanism of injury, the nature of the likely associated condition, the time passed for recovery and the treatment received. He stated that the recent MRI confirmed material resolution of the indentified disc pathology postulated to be resulting from the compensable injury. The medical advisor felt that on a balance of probabilities, the worker had recovered from the effects of his July 2007 injury and that no workplace restrictions were apparent.

In a decision dated April 27, 2009, the worker was advised of the WCB's decision that based on the MRI findings of April 7, 2009 and the opinion expressed by the WCB medical advisor, that he had recovered from the effects of his compensable injury and that his entitlement to wage loss benefits had ended.

On January 28, 2010, the WCB received a submission from the worker's advocate disagreeing with the WCB's decision that the worker had recovered from his July 28, 2007 accident. The advocate provided the WCB with a report from an ear, nose and throat specialist dated June 19, 2009 that the worker still suffered from sinusitis and was advised that he should not fly. She felt that it would not have been unreasonable to postpone the April 14, 2009 call in examination until the worker's sinusitis resolved.

In support that the worker had not recovered from his compensable accident, the advocate provided the WCB with further medical information to consider. This included a May 25, 2009 Medical Certificate that the worker's diagnosis continued to be "herniated lumbar disc", a July 14, 2009 report from a neurosurgeon that the worker had chronic low back pain and needed epidural or facet block injections; a November 2, 2009 report from a chiropractor that the worker would benefit from continued physiotherapy following facet block injections, and another report from the neurosurgeon dated November 11, 2009 which indicated that the worker's intolerable back pain and on occasion shooting down the back of his legs may be the result of his lumbar disc bulge. He also felt there was an element of mechanical musculoskeletal strain contributing.

At the request of the case manager, the information submitted by the advocate was reviewed by a WCB medical advisor on March 3, 2010. In the medical advisor's opinion, the current diagnosis was "likely most accurately termed non specific low back pain, based largely on reported symptoms, as exam is reportedly normal, and imaging findings unremarkable." He stated the medical information did not establish a probable relationship between the original compensable diagnosis and the current diagnosis for reasons outlined in his note of April 17, 2009. The medical advisor also outlined the view that despite the worker's prolonged history of sinusitis, the worker was known to have flown on several occasions since 2007 and it was not likely that his chronic sinus condition precluded flying.

In a letter dated March 4, 2010, the case manager advised the worker that the new medical information submitted by his advocate was considered and that no change would be made to the decision outlined on April 27, 2009. On May 5, 2010, the worker's advocate appealed the decision to Review Office.

On May 13, 2010, Review Office determined that the worker was not entitled to wage loss benefits beyond April 15, 2009 and that the worker's ongoing back and left leg complaints were no longer considered to be related to the July 28, 2007 compensable injury.

After considering the reports from the neurosurgeon, orthopaedic consultant and attending physician, Review Office accepted the opinion of the WCB medical advisor that the most probable diagnosis of the compensable injury sustained on July 28, 2007 was that of a back strain or disc bulge without nerve root irritation, given the lack of any neurological findings at the time of the first exam following the accident. Review Office concurred that the effects of the July 28, 2007 compensable injury had essentially resolved given the lack of any pathoanatomical abnormality on which to base ongoing workplace restrictions. On June 16, 2010, the advocate appealed Review Office's decision to the Appeal Commission and a hearing by teleconference was arranged. On September 7, 2010, the worker provided the Appeal Commission with additional correspondence that would be referred to at the hearing.

Reasons

In this case, we have reviewed the mechanism of injury and note ongoing reports of the worker's pain focus, and our earlier conclusions regarding the worker's descriptions of his pain complaints throughout this claim. On the basis of these findings, we conclude that the worker is currently suffering at best from a mild degenerative disc disease and that there has been neither an aggravation or enhancement of this condition as a consequence of the workplace injury.

We therefore find that the worker has recovered from the compensable injury and that his ongoing back and left leg complaints are no longer related to his compensable injury. As we place significant reliance on the April 7, 2009 MRI report, we find that as of this date it is clear that the worker had recovered and is not entitled to benefits after this date.

2. Whether the worker is entitled to wage loss benefits beyond April 15, 2009

On the first issue we found that the worker had recovered from the workplace injury. We placed significant weight on the MRI report of April 7, 2009 and found that as of that date the worker's symptoms were not related to his workplace injury. The second issue deals with the worker's entitlement to wage loss benefits after the benefits were suspended on April 15, 2009.

There is much information on file regarding the worker's refusal to attend medical appointments in Winnipeg. Additional information was provided at the hearing on this issue. However, given the panel's conclusion on the first issue, the panel finds that the worker is not entitled to benefits beyond April 15, 2009 as he had recovered prior to that date.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 13th day of October, 2010